Mintz v. Frazier

288 S.E.2d 24, 160 Ga. App. 668, 1981 Ga. App. LEXIS 3165

• Court: Court of Appeals of Georgia
• Decided: November 12, 1981
• Docket: 62397
• Status: Published

Opinions

Pope, Judge.

This suit was initiated to recover damages for injuries inflicted upon plaintiffs dog when it was attacked by defendant’s dog. A motion for summary judgment was filed by defendant along with a supporting affidavit. This appeal is from the trial court’s grant of that motion.

Defendant’s affidavit states that she has “breached no duty owed to plaintiff’ and further that she is not liable for any injuries to the dog of plaintiff. However, these statements are merely legal conclusions and provide no evidentiary basis upon which the trial court could have decided the motion. The facts sworn to in the affidavit which would be admissible as evidence do not refute the facts necessary to prove plaintiffs case and do not indicate that defendant would be entitled to a judgment as a matter of law. Ownership of the dog is not denied by defendant nor does she present facts which refute plaintiffs contention that defendant’s dog attacked plaintiffs dog. The defendant in the affidavit admits that this incident was the second fight between these two particular animals and makes no claim of her absence of knowledge as to her dog’s dangerous propensity to inflict this type of injury.

It is necessary in the present case for the plaintiff to prove that the owner of the dog knew of the dog’s propensity to do the particular act which caused injury to the complaining party. Fitzpatrick v. Henley, 154 Ga. App. 555 (269 SE2d 60) (1980). This case is distinguished from the case of Kiser v. Morris, 156 Ga. App. 224 (274 SE2d 610) (1980), where this court held that in an action under Code Ann. § 62-2004 the rule as to scienter or knowledge on the part of the owner of a vicious dog has no application in a case in which that dog goes on the land of another and injures another dog. Compare Code Ann. § 105-111. The defendant’s affidavit in the case at bar indicates that the fight initiated in the public road and upon an easement adjoining her house and culminated in her front yard. In our view these areas would not be considered the “land of another” as contemplated by the above referenced statute.

On summary judgment the burden is on the moving party to produce evidence which conclusively eliminates all material issues in the case and demonstrates that the moving party is entitled to a judgment as a matter of law. Code Ann. § 81A-156. That party must make a prima facie showing that he or she is entitled to a judgment as a matter of law before the burden of producing evidence shifts to the opposing party. Compare Big Chief Truck Lines v. Thaxton, 155 Ga. App. 233 (270 SE2d 399) (1980); Herman v. Walsh, 154 Ga. App. 712 (269 SE2d 535) (1980).

Decided November 12, 1981 Rehearing denied December 8, 1981 Gloria Mintz, pro se. Genevieve Frazier, pro se.

In the present case defendant, as the moving party on summary judgment, failed to carry her burden. A review of the defendant’s affidavit reveals that the evidence contained therein does not negate the elements of plaintiffs cause of action. When a dog is alleged to have repeated behavior which has caused the same injury to the same animal, and the owner thereof does not deny knowledge of the initial injurious act, a question of fact arises as to whether the defendant had knowledge of the animal’s propensity to do the type of harm which was inflicted. Compare Fitzpatrick v. Henley, supra; Banks v. Adair, 148 Ga. App. 254 (251 SE2d 88) (1978); Turner v. Irvin, 146 Ga. App. 218 (246 SE2d 127) (1978); Connell v. Bland, 122 Ga. App. 507, 509 (177 SE2d 833) (1970). See also Storck v. Payne, 53 Ga. App. 445 (186 SE 461) (1936).

The trial court erred in granting summary judgment for the defendant.

Judgment reversed.

Quillian, C. J., Deen, P. J., McMurray, P. J., Shulman, P. J., Carleyand Sognier, JJ., concur. Banke and Birdsong, JJ., dissent.